Roth v. Barner

2 Pennyp. 214 | Pa. | 1882

— The opinion of the Court was delivered by

Sterrett, J.

The testimony, in relation to the parol agreement specially declared on, was somewhat conflicting, but, being clearly proper for the consideration of the jury, it was for them to say what the parties meant, what their contract was. After referring to the testimony, the learned judge said in-substance, if the jury was satisfied from the" evidence that, when the judgment was given, it was agreed between Kline and Roth that the latter would pay the debt due to Mrs. Barner, that the promise or understanding of Roth to pay the debt induced Kline to give the judgment, and it was confessed on that condition, then the plaintiff might recover ; but, on the other hand, if the plaintiff failed to satisfy them that such was the contract and condition on which the judgment was given, their verdict must be for the defendant. He also instructed them that there must be an absolute promise on the. part of Roth. “ If he merely said he would, pay the note, in case Kline could not or would not, it would not be enough to hold him.” In view of the explicit instructions thus given, the jury must have found that the plaintiff in error, in consideration of obtaining the confession of judgment, promised absolutely and unconditionally to pay the balance due on the note, and that the judgment for $5000 was given by Kline on the faith of that promise. Any doubt that may have existed as to the essential features of the agreement was thus settled by the verdict. That there was a good consideration for the promise found by the jury can scarcely be doubted. The plaintiff in error, by obtaining the confession of judgment when he did, was placed in a better position than he occupied before. He acquired a lien on the real estate of his debtor, then in failing circumstances, which gave him an advantage over Mrs. Barner and other unsecured creditors. "While he was thus benefited by the preference acquired, she was prejudiced to the extent that her chances for the security and ultimate collection of the note were impaired. Kline was not bound to prefer him to the exclusion of Mrs. Barner, or any of his other creditors, and if, for the purpose of protecting her, he gave the judgment on condition that plaintiff in error would pay her claim, coupled with an express promise to do so, it cannot be doubted there was sufficient consideration for the promise. While the promise was not made to her, it was undoubtedly intended for her benefit. In Hird v. Holdship, 2 Watts, 104, it is said: “ A consideration is sufficient, if it arise from any act of the plaintiff", from which the defendant or a stranger derives any benefit, however small, if such act is performed by the plaintiff, with the assent, express or implied, of the defendant; or, by reason of any damage or any suspension or forbearance of the plaintiff’s right at law or in equity ; or any possibility of loss occasioned to the plaintiff by the promiseof another, although no actual benefit accrues to the party undertaking.” It is not essential that the consideration should be adequate in point of actual value, for the reason that the law does not weigh the quantum of consideration. The presumption is that plaintiff in error could not have obtained a preference whereby Mrs. Barner’s security would be lessened, if he had not assumed the payment of her claim. Again, it is worthy of notice that plaintiff in error is not merely an irregular indorser of the note described in the declaration, and which he specially promised to pay in consideration of obtaining the judgment. The note to the order of Mrs. Barner, reads: “ One year after date, we promise to pay,” etc.; and is signed by both Kline and plaintiff in error ; by the former, in the usual place at the right, and by the latter on the left, under the words “ Credit the drawer.” The declaration is not against him as maker, but the manner in which the note is signed shows he is'not a mere stranger to the debt he promised to pay.' Moreover, the note could have been regularly negotiated by Mrs. Barner, and, in the hands of her indorsee, he might have been liable on his irregular indorsement. It cannot be said, therefore, that he was so far a stranger to the note, that he was not pecuniarily interested in making provision for its payment. These features of the case are sufficient to distinguish it from those that are mainly relied on by the plaintiff in error. From what has been said, it may safely be concluded that the parol promise declared on was founded on a good and sufficient consideration, and was made for the benefit of the defendant in error. If this be so, there appears to be no valid objection to her maintaining a suit in her own name.

The assignments of error are not sustained.

Judgment affirmed,